In real property law.A real covenant by the grantor of lands, for himself and his heirs, to warrant anddefend the title and possession of the estate granted, to the grantee and his heirs,whereby, eitherQupon voucher, or judgment in the writ of icarrantia chartw, and the eviction of thegrantee by paramount title, the grantor was bound to recompense him with other landsof equal value. Co. Litt. 305o. _ In sales of personal property. A war- R ranty is astatement or representation made by the seller of goods, contemporaneously with andas a part of the contract of sale, though collateral to the express object of it, havingreference to the character, quality, orS title of the goods, and by which he promises or undertakes to insure that certain factsare or shall be as he then represents them.A warranty is an engagement by which a seller assures to a buyer the existence ofsome fact affecting the transaction, whether | past, present, or future. Civ. Code Cal. i17G3.In contracts. An undertaking or stipulation, in writing, or verbally, that a certain fact inrelation to the subject of a contract Ij is or shall be as it is stated or promised to be.A warranty differs from a representation in tlint a warranty must always be givencontemporaneously with, and as part of, the contract; whereas a representationprecedes and inducesVto the contract. And. while that is their difference in nature, their difference in consequenceor effect is this: that, upon breach of warranty, (or false warranty.) thecontract remains binding, and damages only are recoverable for the breach:whereas, upon a false representation, the defrauded party may electWto avoid the contract, and recover the entire price paid. Brown.The same transaction cannot be characterized as a warranty and a fraud at thesame time. A warranty rests upon contract, while fraud, or fraudulent representationshave no element of contract in them, but are essentially a tort. When judges or lawwritersspeak of a fraudulent warranty, the language is neither accurate norperspicuous. If there is a breach of warranty, it cannot be said that the warranty wasfraudulent, with any more propriety than any other contract can be said to have beenfraudulent, because there has been a breach of it. On the other hand, to speak of afalse representation as a contract or warranty, or as tending to prove a contract orwarranty, is a perversion of language and of correct ideas. Rose v. Hurley, 39 Ind. 81.In insurance. In the law of insurance,”warranty” means any assertion or undertaking on the part of the assured, whetherexpressed in the contract or capable of being annexed to it, on the strict and literaltruth or performance of which the liability of the underwriter is made to depend. Maude& P. Shipp. 377; Sweet.
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